REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC NO. 129 OF 2029
JOSEPH IBAU & 73 OTHERS………………………...... PLAINTIFF/RESPONDENT

VERSUS
LANGATA DEVELOPMENT CO.LTD……..………… 1ST DEFENDANT/RESPONDENT
MARGARET ESTHER DAMES&JOHN ANDREW DAMES O/B OF ESTATE OF
MARY WAIRIMU DAMES...................................................2ND DEFENDANT/APPLICANT

PLAINTIFFS RESPONDENT SKELETON SUBMISSIONS IN RESPECT TO THE

NOTICE OF MOTION APPLICATION DATED 25TH FEBRUARY 2022

MAY IT PLEASE THE COURT

PRELIMINARY

1. The 2nd Defendant /Applicant filed a Notice of Motion dated 25th February 2022 seeking
orders that:-

a) The order given on 23rd February 2022 to close the Plaintiff’s case be set aside and the
Plaintiff’s case be re-opened for cross-examination of the Plaintiff’s witness Joseph Ibau
by the applicant/2nd Defendants Counsel.
b) That the Plaintiff witness be re-called on 24th July 2022 for cross examination by the 2 nd
Defendant Counsel.
c) That the Applicant/2nd Defendant be granted leave to file an amended list of Documents
to add 4 additional exhibits for the 2nd Defendant to enable the Honorable Court to
determine the real question between the parties in this suit.
d) The cost of the application be cost in the cause.

2. The Plaintiffs /Respondent has opposed the said application and filed a Replying Affidavit
Dated 25th April 2022

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3. Issues for determination

1. Whether the Defendant/ Applicants have laid sufficient and justifiable reason for
their non-attendance in court for the hearing.

2. Whether the orders are warranted in light of the prejudice to be occasioned to the
Plaintiff considering the interests of justice and whether the application meets the
threshold for the grant of the sought orders. 

3. Whether it is just that the court should grant the order of adducing additional
evidence after close of pleadings and compliance with Pre –Trial Directions

ANALYSIS AND THE LAW

(1)  Whether the Defendant/ Applicants have sufficient and justifiable reason for their
non-attendance in court for the hearing

In this case, the Counsel for the Applicant/Defendants after appearing virtually at 9.30 am
confirmed that he was ready to proceed and would be available for the physical hearing
allocated at 11.30am and failed to do so, resulting in his failure to attend court for the
Plaintiff’s hearing. The Defendants Counsel together with the Defendants failed to produce
any evidence to support their reasons for non - attendance and also failed to inform the
Plaintiff’s Counsel of the foregoing circumstances in due time before the hearing.

It is also of judicial notice that the Honourable Court before the start of the hearing
confirmed the presence of all the stakeholders in the case and the 2nd defendants’ clerk was
not in court nor did the defendants counsel call any parties to indicate his delay or
indisposition.

In the case of Racheal Njango Mwangi (Enclosed), the court while considering a similar
reason stated that;

“This court is always skeptical of parties that seek to blame their Advocates and fail to
produce any evidence that they have taken any steps to make the said Advocate liable for
their negligence. The court recognizes that a case belongs to a party and it is upon that

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party to follow up on their case and once a party appoints an Advocate, the party then
becomes liable for the actions of the said Advocates who was acting on their behalf.”

It is our submission that the 2nd has not demonstrated any good reason for their failure to
attend the hearing and has clutched on a reason to justify his non-attendance.

2. Whether the orders are warranted in light of the prejudice to be occasioned to the
Plaintiff considering the interests of justice and whether the application meets the
threshold for the grant of the sought orders. 

That from the court record the matter was awaiting a hearing date for a period of 2 years
with parties having complied with Pre –Trial directions in 2022

The 2nd defendant despite confirming his availability was aware of the place and time of
the Hearing. The 2nd defendants advocate or its witnesses failed to show up and hearing
proceeded in their absence. The plaintiff witness was called and examined in the absence
of the defendant and the court duly closed the Plaintiff’s case.

The Plaintiffs witness is an elderly man who lives in Thika and has all along waited for a
period of 2 years to have his day in court and the prejudice he suffers is to be taken back to
the point where his testimony and evidence is to be disregarded and recalled on the basis
of a party who deliberately absconded hearing.

The other prejudice the plaintiffs are facing is the purported introduction of new exhibits
whereas parties had closed its pleadings this if allowed will be tantamount to allowing the
defendants to change its case midstream the hearing.

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3. Whether it is just that the court should grant the order of adducing additional
evidence

We submit that the Plaintiff’s witness has already testified, examined and re-examined and
the plaintiff’s case closed any introduction of additional evidence amounts to stealing a
match against the plaintiff and would certainly be prejudicial. This position is captured in
Petition No. 266 of 2020 in OKIYA OMTATAH OKOITI V DIRECTOR OF PUBLIC
PROSECUTIONS it was held

A party who approaches the Court for relief must deploy all his arsenals at the time of
the filing and hearing of the case and can only seek to reopen the case in circumstances
where it is so clear that the failure to adduce particular evidence was inadvertent and he
or she cannot take blame for that failure.

The 2nd Defendant is making a belated attempt at this stage of the proceedings to adduce
evidence whose sole purpose is to plug in the gaps in its and the present application only
seeks to produce new or additional evidence deliberately left out.

 The grant of leave sought is not a matter of right but of the Court’s discretion which
should be carefully exercised.  It is our submission that the application for order of
additional evidence has been made years after the case since began, without justification
and or explanation given for the delay, which is clearly inordinate in the circumstances.
Reliance is placed on Simba Telecom v Karuhanga & another [2014] UGHC 98, for the
proposition that a prayer for re-opening of a case will be defeated by inordinate and
unexplained delay. The Court is therefore urged to find the application without merit and
dismiss it.

It is our further submission that the 2ND Defendants application has been brought too late in
the day and with the aim of embarrassing the conduct of the case for the Plaintiffs and
delaying the conclusion of the trial. The Defendants have not explained to the Court where
the purported evidence they now seek to introduce has been all along and as such there can
be no doubt that they actually had been in possession of the said evidence since the
inception of the suit or alternatively were busy crating it to suit their case.  We submit that
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 the Defendant had many years to put the said evidence on record to supply it to the
Plaintiffs and produce it during the conduct of its case. 

My Lady it is our humble submissions that the 2ND Defendant has not presented any
justifiable reasons upon which the court should exercise its discretion to set aside the order
of closing the plaintiff’s case and the present application is an attempt to produce new
evidence thinly veiled to embarrass the conduct of the case for the Plaintiff’s as such is an
abuse of the Court process and should not be allowed and thus pray that the application be
dismissed with cost.

Dated At Nairobi this Day of 2022

KIRWA KOSKEI & CO. ADVOCATES

ADVOCATES FOR THE PLAINTIFFS

DRAWN AND FILED BY:

KIRWA KOSKEI & CO. ADVOCATES

MEZZANINE 3, CORNER HOUSE
P.O BOX 200600-0200
NAIROBI
EMAIL: info@kklaw.co.ke
TEL: 0723 388 067/ 020 231 4853

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TO BE SERVED UPON

GITAU J.H MWARA CO.ADVOCATES

METRO FAIRVIEW TOWERS
GROUNDFLOOR SHOP NO 8
BUJUMBURA ROAD
PANGANI SHOPPING CENTER
EMAIL; gmara64@gmail.com Tel;0722503408
P.o.Box 100289-00101
NAIROBI

CM ADVOCATES LLP
I&M Bank House,7th floor
2nd Ngong Avenue
P.O Box 22588-00505
NAIROBI
law@cmadvocates.com,wlusi@cmadvocates.co

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 REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC NO. 129 OF 2029
JOSEPH IBAU & 73 OTHERS………………………...... PLAINTIFF/RESPONDENT

VERSUS
LANGATA DEVELOPMENT CO.LTD……..………… 1ST DEFENDANT/RESPONDENT
MARGARET ESTHER DAMES&JOHN ANDREW DAMES O/B OF ESTATE OF
MARY WAIRIMU DAMES...................................................2ND DEFENDANT/APPLICANT

PLAINTIFF’S LIST OF AUTHORITIES

1. Racheal Njango Mwangi (Suing as Personal Representative of the Estate of Mwangi

Kabaiku) v Hannah Wanjiru Kiniti & Another [2021] Eklr

2. Okiya Omtata Okoiti V Director Of Public Prosecutions[2020]Eklr

3. Simba Telecom v Karuhanga & another [2014] UGHC 98

Dated at Nairobi this ………………………………Day of …………………………….. 2022.

KIRWA KOSKEI & COMPANY

ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY

KIRWA KOSKEI & CO.ADVOCATES

CORNER HOUSE BUILDING, M3 Floor.

P.O Box 20060-00200

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NAIROBI

(info@kklaw.co.ke (0723388067)

TO BE SERVED UPON

GITAU J.H MWARA CO.ADVOCATES

METRO FAIRVIEW TOWERS
GROUNDFLOOR SHOP NO 8
BUJUMBURA ROAD
PANGANI SHOPPING CENTER
EMAIL; gmara64@gmail.com Tel;0722503408
P.o.Box 100289-00101
NAIROBI

CM ADVOCATES LLP
I&M Bank House,7th floor
2nd Ngong Avenue
P.O Box 22588-00505
NAIROBI
law@cmadvocates.com,wlusi@cmadvocates.com